50 Years After ADEA: Age Discrimination Still Persists

50 Years After ADEA: Age Discrimination Still Persists

Commemorating the 50th anniversary of the Age Discrimination in Employment Act (ADEA), the Equal Employment Opportunity Commission (EEOC) recently released a report by Acting Chair, Victoria Lipnic, entitled The State of Age Discrimination and Older Workers in the U.S. 50 Years After the Age Discrimination Employment Act. The report reviews the history of the ADEA and the continued existence of age discrimination among U.S. employers. In her introductory letter to readers of the report, Vicnic conveys her hopes that it will help put to rest outdated assumptions about experienced workers. “They have talent that our economy cannot afford to waste.”

Following is a short abstract of the report:

The ADEA was first passed by Congress in 1967. It is considered civil rights legislation, and was part of congressional actions in the 1960s intended to assure equal opportunity in the workplace.

In passing the ADEA, Congress recognized that age discrimination was caused primarily by unfounded assumptions that age impacted ability. To prevent and stop such arbitrary discrimination, the ADEA requires employers to consider individual ability, rather than assumptions about age, in making an employment decision.

The U.S. workforce has changed dramatically in the 50 years since the ADEA was drafted into law, but age discrimination persists. The number of workers age 55 and over has doubled in the last 25 years and women represent a larger portion of the labor force. People are also working longer. This tendency is influenced by several reasons including longer life expectancy, but also the demise of traditional employer pension benefits and changes in the eligibility age for Social Security. In addition, the Great Recession affected the assets of older workers, making them less certain of retirement finances.

ADEA litigation has also changed during the past 50 years. Throughout most of the period, major cases focused on discriminatory reductions-in-force, denial of benefits, and mandatory retirement policies. It has only been in the past decade that the EEOC has begun to focus on challenging discriminatory hiring policies, both individual and systemic.

Even during a time of low unemployment and high demand for skilled employees, older workers still find it more difficult to find a job. Age discrimination certainly exists, but it is difficult to measure. The report finds that the perception of age discrimination is prevalent. More than 6 in 10 workers age 45 and over say that they have seen or experienced age discrimination in the workplace. The problem is more pronounced in the tech industry, with 70% reporting direct experience of age discrimination.

The broad perception of discrimination is not clearly reflected in actual ADEA charges with the EEOC or with state agencies. The report estimates that only 3% actually make a formal complaint, either to someone in the workplace or to a government agency. Unlawful discharge is the prevalent claim in ADEA charges filed with the EEOC. In 2017, 55% of charges filed were in this category. Complaints based upon age based harassment, discriminatory terms and conditions, and allegations of discriminatory discipline have increased over the life of the regulation.

Costs to employers can be steep. The largest ADEA suit to date, Arnett v. California Public Employees’ Retirement System, settled for $250 million. In the private sector, Sprint Nextel settled an ADEA collective action for $57.5 million, after a layoff of 1700 older workers between 2001 and 2003.

Age discrimination remains a significant barrier for older workers and results in missed opportunity for employers who need the skills and knowledge that older workers can provide. The report suggests that workplace practices can counter unconscious bias and stereotyping and recommends that organizational leadership work to foster a workplace culture that is committed to age diversity and inclusion.

The EEOC report concludes with a return to the basis for the original act, reiterating that assumptions of a connection between age and ability are invalid.

Training recruiters and interviewers to avoid ageist assumptions and even common perceptions about older workers is critical. For example, the assumption that hiring a younger worker is less expensive and a better return on investment than hiring an older worker is outdated and flawed. Contrary to common perception, older workers do not cost significantly more than younger workers, as structural changes in compensation and benefits have created a more age-neutral distribution of labor costs. And the presumed investment based on the assumption that the younger worker will be with the employer longer is less likely these days. Millennials are leaving their employers, on average, after three years, whereas older workers, on average, provide employers with more stability, longer tenures, and ultimately a greater return on investment.